Citation Nr: 0913239
Decision Date: 04/09/09 Archive Date: 04/21/09
DOCKET NO. 08-00 128 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
ATTORNEY FOR THE BOARD
Lynne M. Yasui, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1958 to
December 1959.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a January 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon.
FINDING OF FACT
The Veteran's current bilateral hearing loss disability did
not have onset during active service or within one year of
separation for active service, and is not otherwise
etiologically related to his active service.
CONCLUSION OF LAW
The criteria for service connection for bilateral hearing
loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309
(2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran contends that he suffers from bilateral hearing
loss. In his statement in support of claim, received
December 2005, the Veteran stated that these symptoms were
the result of noise exposure from 500 pound bombs during his
work as an aviation apprentice while in active service.
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38
C.F.R. § 3.303(a) (2008). In general, service connection
requires (1) medical evidence of a current disability; (2)
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999).
Certain chronic diseases, including sensorineural hearing
loss, may be presumed to have been incurred in service,
although not otherwise established as such, if manifested to
a degree of ten percent or more within one year of the date
of separation from service (in this case, October 1946). 38
U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309
(2008). Service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2008).
A hearing loss disability is defined for VA compensation
purposes with regard to audiologic testing involving puretone
frequency thresholds and speech discrimination criteria. 38
C.F.R. § 3.385 (2007). For purposes of applying the laws
administered by VA, impaired hearing will be considered to be
a disability when the auditory threshold in any of the
frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz)
is 40 decibels or greater; or when the auditory thresholds
for at least three of the frequencies of 500, 1,000, 2,000,
3,000, or 4,000 Hz are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent. Id.
Service treatment records are absent for any reports of
hearing loss. A separation report of medical examination,
from December 1959, indicated a normal clinical evaluation of
the Veteran's ears and normal hearing bilaterally upon
audiometric testing. These records provide highly probative
evidence against the Veteran's claims because they show no
hearing loss during service.
In this regard, it is important to note that the Board does
not dispute the fact that the Veteran was exposed to loud
noise during service. The critical question is whether the
current hearing loss was caused by this noise exposure.
The Veteran contends that his hearing loss began in 1959.
However, the first evidence of record showing symptoms of and
treatment for hearing loss is dated October 2005, over four
decades after separation from service. This is strong
evidence against his claim. See Maxson v. Gober, 230 F. 3d
1330, 1333 (Fed. Cir. 2000) (holding that it was proper to
consider the veteran's entire medical history in determining
if service-connection is warranted, including a lengthy
period of absence of complaints); see also Forshey v.
Principi, 284 F.3d 1335 (Fed. Cir. 2002) (holding that
"negative evidence" could be considered in weighing the
evidence).
Audiologic testing pursuant to VA audiology examination in
October 2008 showed puretone thresholds in the right ear at
500, 1000, 2000, 3000, and 4000 Hertz of 50, 70, 65, 80, and
80 decibels, respectively. Puretone thresholds measured in
the left ear at 500, 1000, 2000, 3000, and 4000 Hertz were
25, 45, 55, 65, and 65 decibels, respectively. Speech
audiometry revealed speech recognition ability of 72 percent
in the right ear and 72 percent in the left ear. The
audiologist commented that the Veteran had moderate to
moderate to severe sensorineural hearing loss in the right
ear and normal to severe sensorineural hearing loss in the
left ear.
With respect to the etiology of the Veteran's bilateral
hearing loss, the examiner opined that "it is less likely
than not that his hearing loss was caused by or a result of
explosions." The examiner's opinion is highly probative
evidence against the Veteran's claim as it fails to establish
the requisite nexus between the Veteran's current hearing
loss disability and his active service.
As to the Veteran's own contention, that his current hearing
loss is related to service, a layperson is generally not
capable of opining on matters requiring medical knowledge.
Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also
Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu
v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the
appropriate medical training and expertise is not competent
to provide a probative opinion on a medical matter, to
include a diagnosis of a specific disability and a
determination of the origins of a specific disorder).
Some quasi-medical questions do lend themselves to the
opinions of laypersons. For example, when a condition may be
diagnosed by its unique and readily identifiable features,
the presence of the disorder s not a determination "medical
in nature" and is capable of lay observation. Jandreau v.
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, in
Jandreau, the U.S. Court of Appeals for the Federal Circuit
explained, in footnote 4, that a veteran is competent to
provide a diagnosis of a simple condition such as a broken
leg, but not competent to provide evidence as to more complex
medical questions. Here, the Board finds that the Veteran's
opinions as to whether his current hearing loss is related to
service nearly 50 years ago is not competent evidence because
current hearing loss, as it relates to his service from so
many years ago, is a medical question too complex to be the
subject of the opinion of a layperson.
As in all claims for service connection, it is the Board's
duty to assign probative value to the evidence and then to
weigh the evidence favorable to the Veteran's claim against
the evidence unfavorable to the Veteran's claim. See Madden
v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has
the "authority to discount the weight and probity of
evidence in light of its own inherent characteristics and its
relationship to other items of evidence."); see also
Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). If
the favorable evidence outweighs the unfavorable evidence or
if the favorable and unfavorable evidence are in relative
equipoise, the Veteran's claim must be granted. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 (2008).
Here, the absence of any report of hearing loss during
service or for decades thereafter is more probative than the
Veteran's own assertions as to when he first experienced
hearing loss. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir.
2002) (holding that "negative evidence" could be considered
in weighing the evidence).
In summary, the in-service and post-service medical evidence
(which is found to provide evidence against this claim) are
more probative than the Veteran's assertions as to whether
his current hearing loss disability is related to his
service. Based on all evidence of record, the preponderance
of evidence is against his claim for service connection and
the claim must be denied. The evidence in this case is not
so evenly balanced so as to allow application of the benefit-
of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49
(1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008).
Duties to notify and assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
38 C.F.R. § 3.159(b)(1). This notice must be provided prior
to an initial unfavorable decision on a claim by the RO.
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court
held that, upon receipt of an application for a service-
connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. §
3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating, or is
necessary to substantiate, each of the five elements of the
claim, including notice of what is required to establish
service connection and that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded.
Here, the VCAA duty to notify was satisfied prior to the
initial RO adjudication. This was accomplished by way of a
letter sent to the Veteran in November 2005. The letter
fully addressed all three notice elements and informed the
Veteran of what evidence was required to substantiate the
claim and of the Veteran's and VA's respective duties for
obtaining evidence.
The November 2005 notice did not provide any information
concerning the evaluations or the effective dates that could
be assigned should service connection be granted. See
Dingess, supra. However, since this decision affirms the
RO's denial of service connection for bilateral hearing loss,
the Veteran is not prejudiced by the failure to provide him
that further information. That is, as the Board finds that
service connection is not warranted for the claim for service
connection at issue on this appeal, no ratings or effective
dates will be assigned and any questions as to such
assignments are rendered moot.
VA has a duty to assist the veteran in the development of the
claim. This duty includes assisting the veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore, appellate review may proceed
without prejudice to the Veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has received service treatment
records and private medical reports. An appropriate VA
examination was afforded the veteran in October 2008.
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance to the Veteran is required to
fulfill VA's duty to assist the veteran in the development of
the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16
Vet. App. 183 (2002).
ORDER
The appeal is denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs